Newsletter, Image, Likeness Vol. 100: New Objectors File Opposition To House-NCAA Proposed Settlement

The Weekly Longer NIL Thought.

First of all, thanks to everyone who has read this newsletter whether this is the first volume you're reading or you've read all 100 volumes. Didn't know we would get to 100 volumes, but here we are.

Anyhow, this week's longer thought revolves around what remains the biggest issue in college sports at large -- whether a now amended proposed settlement to close the House/Hubbard/Carter v. NCAA cases will be approved by Judge Claudia Wilken.

The likelihood of approval may have taken yet another shot this week when a new group of objectors filed an opposition to the preliminary approval. Those objectors include current, past, and future college athletes and are represented by Hausfeld LLP, which is the law firm that served as counsel for Ed O'Bannon in his case against the NCAA. That matter was also in front of Judge Wilken.

The new objectors argue that the damages amount in the proposed settlement is too low, the revenue sharing cap is unlawful and unsupported (including that it violates applicable federal antitrust law), it includes an unfair restriction on NIL collectives, it is being used as a "stalking horse" for federal legislation to grant the NCAA antitrust immunity, and that it is being improperly used to promote legislation that would deny employee status to college athletes. Reference is made to a letter that was recently issued by governors of Montana, North Dakota, South Dakota, Wyoming, and Idaho, which complained about the adverse impact the proposed settlement will have on the "smaller" schools in those states.

One of the more interesting arguments in this opposition is as follows: "several states have enacted laws that strictly prohibit the NCAA, athletic conferences, and member schools from interfering in any respect (including revenue sharing caps) with a college athlete earning NIL compensation and/or the existence of NIL Collectives . . . Some of these states, expressly prohibit colleges and universities from providing NIL benefits, instead implicitly delegating such authority to NIL Collectives."

The opposition notes that approving a settlement that interferes with the above would be directly contrary to those state laws and that a federal settlement "is not part of the Constitution, nor is it a law of the United States to which the Constitution’s Supremacy Clause applies." Thus, preemption of those state laws would be necessary to enforce the settlement's terms, but "Courts, including those in the Ninth Circuit, have repeatedly found that efforts to override state laws through a settlement are improper and invalidate the terms of the settlement agreement as unenforceable and/or void against public policy."

For what it's worth, attorney Steve Berman who represents plaintiffs in the House/Hubbard/Carter matters provided a statement in response to the filed opposition, which states that, "the Hausfeld filing is ironic. In O'Bannon the judge rejected Hausfeld's damage analysis, and at the end of they day, they recovered nothing for the athletes. He then tried to become lead counsel in Alston, and that attempt was rejected. Alston is the case that went on to open the door for NIL rights and for this settlement, and it was led by Jeff Kessler and myself. This is sour grapes, unsupported by an expert's evidence."

Yeah, it's getting personal.

High Schoolers In NC Can Enter Into NIL Deals.

Wake County, North Carolina Superior Court Judge Graham Shirley granted a preliminary injunction, which takes NC's state board's proposed permanent NIL rule to allow high schoolers in the state to do NIL deals and makes it effective immediately.

Very few states prevent high schoolers from entering into NIL deals anymore.

Gavin Newsom Vetoes Bill That Would Have Required Collectives To Disclose Contract Info.

SB906 was vetoed by the California governor. The bill intended to require NIL collectives to provide transparency on any deals with compensation of $5,000 or more.

“College sports are in a period of transition, as many schools are changing athletic conferences and relevant issues are currently pending in the courts,” said Newsom in connection with vetoing the bill. “As governor, I want to ensure California’s colleges continue to be competitive with other states. Further changes to this dynamic should be done nationally.”

Update On The Matt Sluka Situation.

Sluka's former coach Bob Chesney said that Sluka had offers 5-to-6 times what UNLV purportedly promised him, but Sluka wanted to stay true to his commitment to UNLV. As a reminder, Sluka decided to redshirt, even though UNLV was 3-0 because he said that UNLV reneged on its promise to pay him $100,000.

Cal Collective Launches College Gameday Fundraiser.

ESPN's College Gameday is heading to Cal-Berkeley's campus for the 1st time in 36 years. The school's collective launched a "Million Dollar GameDay Match" where it promised to match 1:1 the first million dollars donated to the campaign.

Notre Dame Not-For-Profit Collective To Shut Its Doors.

Friends of the University of Notre Dame Inc. (aka FUND) intends to discontinue operations before the 2025-26 academic year. Brady Quinn co-founded it.

Florida High School Stands In Way Of Student Creating NIL Club.

Jupiter High School has told Judah Glusman that he and his classmates are forbidden from starting an NIL club, because the school believes it requires it to associate with NIL.

“When I brought up the words ‘nil,’ he actually shut me down right away, and really didn’t give me a chance to explain that I just want to help educate the athletes and the people who don’t understand what it is yet,” said Glusman.

However, the Palm Beach County School District is considering Glusman's request.

"We are reviewing the request for this club at this time. There are severe consequences for student athletes who violate FHSAA bylaws, and we want to ensure our students can continue playing the sports they love," said the district.

Arkansas AD Teases Return Of Slobbering Hog Logo If NIL Goal Is Met.

"Hearing some chatter on the Slobbering Hog," said Hunter Yurachek. "I'll make you a deal! I just received a matching gift offer of $500k. If we can raise an additional $500k for (Arkansas Edge NIL) before 5 p.m. on Oct. 7, we WILL put the beloved Slobbering Hog logo at mid-court of BWA."

Final Thoughts.

That is it for Vol. 100 of Newsletter, Image, Likeness. Thanks to the more than 9,180 people who have subscribed to this newsletter thus far, and please feel free to share this free resource with others on LinkedIn or elsewhere.

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